Navigable Waters Protection Program – Frequently Asked Questions
Table of Contents
- What are Navigable Waters?
- What is the Public Right of Navigation?
- What is the purpose of the Navigable Waters Protection Act (NWPA)?
- Who administers the NWPA?
- Will the NWPA affect me?
- What is an Approval?
- What is a Work?
- Who is an applicant or proponent?
- What do I do before I start my construction?
- How does the NWPA application and review process work?
- I was told that I must “Advertise my project.” How do I advertise my project to the public?
- What is the Canada Gazette?
- Who is a Commissioner for Oaths?
- Does Transport Canada determine the navigability of my waterway?
- Does the Navigable Waters Protection Act require approval for bubbler systems?
- What is the ordinary high water mark and why is it important?
- What should I know if my project involves infill of navigable water?
- What are minor works and waters and why did Transport Canada introduce these terms?
- Who is responsible for determining the minor navigable waters and works? How will I know which works and/or waters fall under these specific classes?
- Does introducing minor works and navigable waters under the revised Act mean that there is less or no government protection of navigable waters?
- Who can salvage wreck?
- What do I do if I discover a wreck but am not interested in being a salvor?
- As a salvor, what must I do when I discover wreck?
- As a salvor may I keep any wreck that I discover?
- What types of wreck are most frequently salvaged in Canada?
- What should a salvor not salvage and why?
- Will the Receiver of Wreck help me protect my discovery from other salvors?
- What happens if I do not report wreck to the Receiver?
Questions about the Navigable Waters Protection Act or NWPA
What are Navigable Waters?
Navigable waters include all bodies of water that you can navigate from one place to another by any type of floating vessel for transportation, recreation or commerce.
How often people navigate a body of water may not be a factor in determining if it is a navigable waterway.
What is the Public Right of Navigation?
While not set out in a specific law– this right has evolved over time by necessity and is considered a Common Law. The public has the right to navigate in any navigable waters. Approval to restrict or interfere with this right comes only through the NWPA, the Vessel Operation Restriction Regulations or an Act of Parliament.
What is the purpose of the Navigable Waters Protection Act (NWPA)?
The NWPA provides a way to approve interferences to navigation on navigable waters throughout Canada.
It applies a balance between the public right and need to navigate and the need to build works such as bridges, dams or docks in navigable waters.
With this goal in mind, the NWPA:
- prohibits construction in navigable waters unless approved;
- regulates the removal of wreck and other obstacles to navigation; and
- prohibits the throwing or depositing of any material, such as sawdust, rocks, and gravel into navigable waters.
- you have gone through the Approval process and the Minister of Transport has approved the work, site and plans OR
- your work or the water qualifies as a minor work or water
The Act applies to any interference that is – in, on, over, under, through or across – Canadian navigable waterways.
Contact the NWPP office in your region to learn more about the approval process or for help on determining a minor work or water. You can also call toll-free 1-877-842-5606 – At Your Service.
Who administers the NWPA?
Transport Canada administers the NWPA through the Navigable Waters Protection Program. It grants NWPA Approvals under the authority of the Minister of Transport.
Will the NWPA affect me?
Yes, the NWPA applies to all governments – federal, provincial, or municipal – and to all persons, companies, organizations and Crown Corporations that plan to construct or modify a work in, on, over, under, through or across any navigable waterway.
Such works include but are not limited to: wharfs, docks, piers, dams, booms, bridges, overhead cables or pipelines.
You will not need an individual approval for your work if it qualifies as a Minor Work
What is an Approval?
This is a document authorizing construction in navigable waters. The Minister of Transport or his/her designated representative issues this document, if the NWPP finds the interference caused to navigation reasonable.
An “Approval” issued under the NWPA authorizes the work only in terms of its effects on navigation. The applicant is responsible to obtain other approvals (i.e., federal, provincial, municipal) that may be required.
What is a Work?
The term “work” or “works” refers to any proposed project that is subject to review and approval under the Navigable Waters Protection Act (NWPA).
- any man-made structure, device or thing – temporary or permanent
- any dumping of fill in navigable water, and
- any excavation of materials from the bed of any navigable water.
“Works” also include all other construction, permanent or temporary, related to the main project.
Examples include any bridge, boom, dam, wharf, dock, pier, tunnel or pipe, telegraph, power cable or wire.
Contact your local NWPP Office before starting construction in navigable waters. You can also call a central line toll-free by dialing 1-877-842-5606 – At Your Service.
General Questions about the Application for Approval
Who is an applicant or proponent?
Any person, company or government agency – who proposes to construct, repair or modify work in Canada’s navigable waters.
If you are working with the NWPP to gain approval for your work, we may refer to you as an ‘applicant’ or a ‘proponent’.
What do I do before I start my construction?
Contact the Navigable Waters Protection Program
The minimum requirements for preparing and submitting documents to the NWPP Office are in the application.
The required information includes:
- details about the applicant (either you or the agent or owner of the work)
- the kind of the work
- other approvals you have received (see *Important Note below)
- property ownership
- drawings and plans of your proposed work.
An “Approval” issued under the NWPA authorizes the work only in terms of its effects on navigation. As an applicant, you are responsible to obtain any other required approvals (i.e., Federal, Provincial, municipal),. We encourage you to contact your local provincial and municipal offices early in the planning stage to discuss their requirements.
Call 1-877-842-5606 At Your Service to discuss the construction of your proposed work in general terms before you start your project. Why must I comply with the NWPA?
Interfering with navigation is against the law. If you interfere with navigation without the Approval of the Minister of Transport, Transport Canada can order you to remove or alter the work and you may face costs, fines and/or prison.
NWPA Approval gives you authority to interfere with the public right of navigation because our review ensures your work is not dangerous to the navigating public. We encourage you to consult with the NWPP regional office nearest to you or call 1-877-842-5606 before planning your project.
How does the NWPA application and review process work?
Since every project affects navigation differently, the process and the type of approval you need will depend on the complexity and the nature of your work. The NWPP reviews applications on a project-by-project basis and considers other existing proposed projects in the area.
Building new constructions/works: The NWPP must review applications for new constructions happening in, on, over, under, through or across navigable waters that may interfere with navigation. Examples include, but are not restricted to wharfs, docks, piers, dams, booms, bridges, overhead cables or pipelines.
Rebuilding or altering existing constructions/works: Under subsection 10(1)/10(2) of the NWPA – you must also apply for approval to repair, rebuild or alter an existing work.
I heard that the NWPP treats construction projects differently depending on whether there is “Substantial Interference or Not.” What does this mean? The NWPP Officer will determine if your work will interfere with navigation substantially or not. What happens next depends directly on that decision.
“Substantial Interference” – as set out in NWPA subsection 5 (1)(2):
Substantial interference means that the proposed work will significantly change the way vessels pass down a navigable waterway or may make passage dangerous to the public.
When a project has the potential to substantially interfere with navigation, the NWPP will follow the process set out under subsection 5(1)(2).
This approval process is usually longer, because it requires you to complete additional steps – including advertising the proposed project to the public.
“Other Than Substantial Interference” – as set out in NWPA subsection 5 (1)(3):
The proposed work should not greatly change vessel’s passage in a significant way and should not make it more dangerous to navigate the waterway.
When NWPP officials determine that the work does not substantially interfere with navigation they will follow the process set out under subsection 5(1)(3).
This process usually takes less time to complete, but may require additional steps like public advertising.
I was told that I must “Advertise my project.” How do I advertise my project to the public?
Consult with an NWPP Officer and get the required template before you create the advertisement. You might have to repeat the process if you advertise outside of the NWPP timeframe or in a different format or way.
What is the Canada Gazette?
During the approval process, the NWPP may require you to advertise your project in the Canada Gazette – the official newspaper of the Government of Canada since 1841 – and the published authority of the Statutory Instruments Act.
Who is a Commissioner for Oaths?
This is someone who ensures that documents are accurate and that the person making and submitting them is indeed the person stated in them.
In some cases the NWPA may require you to engage a Commissioner of Oaths to attest to the authenticity of certain documents such as:
- copies of advertising,
- copies of plans deposited and
- statements made to prove ownership of wrecks
Persons designated to act as Commissioners for Oaths, usually, under provincial legislation are:
- Court officials
- Notary Public
- Full-time commissioned officers in the Canadian Forces
- Members of a legislative assembly
- Members of a municipal councilor or a board of education of a ward or division
Specific Questions about the Application for Approval Do temporary works require Transport Canada approval? How long is Temporary?
The length of time a work exists is not the deciding factor when approving works, unless the work falls under the class of minor works in the Minor Works and Waters (NWPA) Order. Consult with the NWPP regional office nearest to you or call 1-877-842-5606 At Your Service to ask questions about your temporary work. The NWPP officer will consider the temporary nature of a proposal when determining interference to navigation and giving approval to the ‘work’. In some cases, during frozen conditions or low water times, a temporary work may not require approval or individual review. Refer to the Minor Works and Waters Order to learn more.
Does Transport Canada determine the navigability of my waterway?
Yes, but only as it relates to approving works on those waterways under the NWPA. For the purposes of land severance, owners should hire a land surveyor or a lawyer to research historical data and provide an opinion.
A water lot is a piece of land lying under a body of water. Water lots may be owned commercially or privately. While owning a water lot gives the owner some property rights on that piece of land, he or she does not own the water column above the water lot and cannot take away the public right to navigate on that waterway. Only federal government approval can give this authority.
Does the Navigable Waters Protection Act require approval for bubbler systems?
A bubbler is a system of pipelines on the water bed that injects air or water into the water column. It creates turbulent waters around the boat or dock to prevent thick ice from forming. Installing pipelines that rest on the bed of the water or suspended in the water column may need approval. Your work may qualify as a Minor Work. Refer to the Minor Works and Waters Order to learn more. Submerged Fans can also prevent ice freezing in much the same way. Fans suspended in the water column circulate the natural water. Temporary fans suspended in the water do not require approval in the winter.
The duty and responsibility to safeguard an opening in the ice caused by a bubbler is part of the Criminal Code of Canada. You can find details about this responsibility at http://laws.justice.gc.ca/en/C-46/ under Section 263 Offenses Against the Person.
If you are considering a bubbler system, contact your insurance provider and local municipality before proceeding. Direct you questions and concerns about dangerous open ice due to a bubbler system to your local police service.
What is the ordinary high water mark and why is it important?
The ordinary high water mark (OHWM) is “The mark left on the landscape by the highest level reached by navigable waters for long enough to leave the mark on the landscape.” This mark is important to the NWP Program because it establishes a benchmark water level. You can use the high water mark to calculate the clearance boats have from overhead and submerged projects. What is the normal summer water elevation? The normal summer water elevation is an average water level reached during normal periods of navigation (usually June-September).
Much like the ordinary high water mark, you can use the normal summer water elevation level as a benchmark to calculate the clearance boats will have from overhead and submerged projects.
What should I know if my project involves infill of navigable water?
We look at infilling in a few ways – are you creating land, depositing tailings or disposing of materials?
- Creating Land Minor infilling for creating small areas of land – often used for parking lots, building construction, staging areas etc. Depending on the size, location and waterway, minor infilling is usually reviewed under Section 5 (1) (3) of the NWPA.
If your project is very small, it might be a Minor Work and would not require an application.
- Large infilling for creating land involving many hectares – usually for port or industrial development.
Most of these projects require Approval under section 5(1)(2) of the NWPA. We recommend that you consult with NWPP staff early in the planning phase for large infilling projects.
- Infilling using dredged spoil, (uncontaminated material recovered from dredging operations) to create land. Depending on the project size, location and waterway, these projects may be approved with section 5(1)(2) or 5(1)(3) of the NWPA.
Note:If your project is very small, it may be a Minor Work and would not require an application.
Tailing areas affecting the public right to navigation involve special permits through Order In Council. They are addressed by Part II, Section 21, 22 and 23 of the NWPA.
Many federal and provincial departments and agencies are involved and extensive public consultation and environmental assessment is required to get approvals for such activities.
Disposing of Dredged Soil
You will find requirements for disposing dredged soil into an approved dumpsite underwater under Part II, Section 25 of the NWPA.
Questions about Minor Works and Waters
What are minor works and waters and why did Transport Canada introduce these terms?
The Minor Works and Waters (Navigable Waters Protection Act) Order identifies certain classes of works and navigable waters that may be exempt from the application process and individual application process under the Act. The Order streamlines the federal approval processes to minimize effort and expense for some proponents. We continue to conduct individual reviews of projects that could affect navigation and the environment.
Who is responsible for determining the minor navigable waters and works? How will I know which works and/or waters fall under these specific classes?
Transport Canada’s NWPP Program navigation experts with experience in project reviews and preview policies developed these classes.
Minor Waters – We grant an exemption when the water’s physical characteristics limit any realistic potential for practical navigation, for example, drainage ditches, seasonal waterways, private lakes etc.
The NWPP expects proponents of potential works to self-assess using the criteria in each class outlined in Minor Works and Waters (Navigable Waters Protection Act) Order. The proponents are fully responsible to meet all criteria to comply with the Order requirements. Failure to do so may result in enforcement measures.
Does introducing minor works and navigable waters under the revised Act mean that there is less or no government protection of navigable waters?
No, Protecting the public right of navigation continues to be the main objective of the NWPA. If you travel in a boat as small as a canoe in water to get from place to place, that water is still subject to NWPA oversight and protection.
Questions about the Receiver of Wreck duties of the NWPP
The NWPP is responsible for managing the Wreck provisions of the CSA, 2001. This legislation supports international maritime law on dealing with wrecked vessels by giving authority to TC officials to act as Receivers of Wreck (taking possession or control of salvaged wreck(s) in the absence of known owners).
A wreck can be a vessel, ship, boat or aircraft, or anything that was part of or was on those craft, that has been wrecked, stranded, in distress, abandoned, derelict, left floating or adrift, aground, sunk or partially sunk.
If the wreck(s) pose(s) an obstruction to navigation, TC may remove or dispose of the wreck under authority of the NWPA.
The key role for Receivers is to try to locate owners and return their property, or to dispose of a salvaged wreck(s) by various means (i.e. sell, give away, destroy, etc) if they cannot locate the owner in a reasonable time period. The Receiver of Wreck does not salvage wrecks.
Anyone other than the owner taking possession of wreck(s) (i.e. salvaging) must notify the local Receiver of Wreck, and may be entitled to a reasonable salvage award paid by the owner. If the owner is known, there is no role for the Receivers.
If you have a question about the Wreck provisions under the CSA, salvage of a wreck please contact your local Receiver .
Questions about Salvaging Wrecks
Salvage: Saving a ship or its cargo from loss
Salvor:One who saves or assists in saving a ship or its cargo from loss
Who can salvage wreck?
A salvor may be a person, a company, the owner of wreck or the owners’ representative, or municipal, provincial, territorial or federal agencies.
What do I do if I discover a wreck but am not interested in being a salvor?
Contact the authority that can address the wreck:
- Contact the Canadian Coast Guard – Environmental Response If you feel that the wreck is represents pollution threat. .
- Contact Transport Canada If the vessel is partially sunk and represents an obstruction to navigation.
- Contact the local or provincial government if the wreck is on the beach.
As a salvor, what must I do when I discover wreck?
Unless you are the owner of the wreck or an agency directly acting on behalf of the owner, you must report your finding and holding of wreck to the Receiver of Wreck. To do this, contact the regional NWPP office to obtain a copy of the Notice of Salvors of Wreck form.
As a salvor may I keep any wreck that I discover?
No, unless you are the owner or the owner gives you permission. A ship that sinks or goes aground, or cargo that is lost over the side is still the property of the original owner – the shipper, the company to which a vessel is registered or an insurance company. Will my salvage costs be reimbursed? The receiver will determine reasonable salvage costs and expenses for your efforts. The owner will pay these expenses. If the owner cannot be found, the salvage award may be the wreck, or all or part of the proceeds of its sale, but may not exceed the value of the wreck. Determining salvage fees can take 90 days or longer.
What types of wreck are most frequently salvaged in Canada?
- Modern commercial vessels and pleasure craft
- Parts of cargo of ships or boats
What should a salvor not salvage and why?
- Military wreck. In most cases, neither the Canadian or foreign governments will grant permission to salvage military wreck because of danger associated with unexploded ammunition.
- Never salvage a Canadian military wreck without clear permission of the Department of National Defense. If you suspect that the wreck is of a military nature, please notify the Receiver of Wreck. He or she will help you contact the appropriate authorities within Department of National Defense.
- Never salvage a foreign military wreck without the clear permission of the appropriate authorities. Please notify the Receiver of Wreck, who will notify the appropriate authorities.
If there were casualties aboard such a wreck, the Canadian and foreign governments usually consider it a wreck or military grave and offer it protection under various legislation.
- Sites of national interest. Do not disturb wrecks that have historical or heritage value to Canadians.
- Wrecks containing dangerous goods, such as polychlorinated biphenyls (PCB) or other chemical products.
Will the Receiver of Wreck help me protect my discovery from other salvors?
No. Salvors have no ownership rights to the wreck. The Receiver of Wreck will not protect or patrol the wreck site.
What happens if I do not report wreck to the Receiver?
This is a legal offence that can result in a fine up to $100,000 and/or imprisonment up to a year.
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